Opinion
1101 KA 14–01531
04-26-2019
The PEOPLE of the State of New York, Respondent, v. Michael A. ALBERT, Also Known as Gotti, Defendant–Appellant.
MEMORANDUM AND ORDERIt is hereby ORDERED that the judgment so appealed from is affirmed. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of murder in the second degree ( Penal Law § 125.25[1] ) stemming from a homicide that occurred in 2006. Although defendant was not indicted for the crime until 2013, we reject his contention that he was entitled to a Singer hearing to explore the reasons for the People's delay in procuring the indictment inasmuch as "the record provided County Court with a sufficient basis to determine whether the delay was justified" ( People v. Rogers, 103 A.D.3d 1150, 1151, 958 N.Y.S.2d 835 [4th Dept. 2013], lv denied 21 N.Y.3d 946, 968 N.Y.S.2d 8, 990 N.E.2d 142 [2013] ; see People v. Smith, 60 A.D.3d 706, 707, 874 N.Y.S.2d 541 [2d Dept. 2009], lv denied 12 N.Y.3d 859, 881 N.Y.S.2d 671, 909 N.E.2d 594 [2009] ).
Defendant further contends that the court erred in denying that part of his omnibus motion seeking to preclude statements that he made to a private citizen who was surreptitiously recording the statements for law enforcement agents. It is undisputed that the People failed to provide defendant with a CPL 710.30 notice with respect to those statements, and we reject the People's contention that no notice was required because the citizen was not a public servant at the time defendant made his statements to her. Although the statute does not require notice of "admissions made to private parties who were not police agents " ( People v. Mirenda, 23 N.Y.2d 439, 448, 297 N.Y.S.2d 532, 245 N.E.2d 194 [1969] [emphasis added]; see People v. Bryant, 144 A.D.3d 1523, 1524, 41 N.Y.S.3d 339 [4th Dept. 2016], lv denied 28 N.Y.3d 1143, 52 N.Y.S.3d 295, 74 N.E.3d 680 [2017] ; cf. People v. Stern, 226 A.D.2d 238, 239, 641 N.Y.S.2d 248 [1st Dept. 1996], lv denied 88 N.Y.2d 969, 647 N.Y.S.2d 723, 670 N.E.2d 1355 ; 88 N.Y.2d 1072, 651 N.Y.S.2d 416, 674 N.E.2d 346 [1996] ), we agree with our dissenting colleagues that the citizen in this case was acting as a police agent at the time she recorded the statements inasmuch as she was acting "at the instigation of the police ... to further a police objective" ( People v. Ray, 65 N.Y.2d 282, 286, 491 N.Y.S.2d 283, 480 N.E.2d 1065 [1985] ; see People v. Eberle, 265 A.D.2d 881, 882–883, 697 N.Y.S.2d 218 [4th Dept. 1999] ; cf. People v. Smith, 262 A.D.2d 1063, 1063, 694 N.Y.S.2d 256 [4th Dept. 1999], lv denied 93 N.Y.2d 1027, 697 N.Y.S.2d 586, 719 N.E.2d 947 [1999] ).
We respectfully disagree with our dissenting colleagues, however, on the issue whether the failure to provide the CPL 710.30 notice warrants preclusion of those statements. We conclude that it does not. Where, as here, there is "no colorable basis for suppression of the statement, the failure to give notice [constitutes] a mere irregularity not warranting preclusion" ( People v. Clark, 198 A.D.2d 46, 47, 603 N.Y.S.2d 450 [1st Dept. 1993], lv denied 83 N.Y.2d 870, 613 N.Y.S.2d 131, 635 N.E.2d 300 [1994] ; see People v. Rockefeller, 89 A.D.3d 1151, 1152–1153, 931 N.Y.S.2d 807 [3d Dept. 2011], lv denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ; see also People v. Garcia–Lopez, 308 A.D.2d 366, 366, 764 N.Y.S.2d 264 [1st Dept. 2003], lv denied 1 N.Y.3d 572, 775 N.Y.S.2d 789, 807 N.E.2d 902 [2003], cert denied 541 U.S. 1078, 124 S.Ct. 2424, 158 L.Ed.2d 991 [2004] ; see generally People v. Greer, 42 N.Y.2d 170, 178–179, 397 N.Y.S.2d 613, 366 N.E.2d 273 [1977] ). In our view, there is no colorable basis for suppression of defendant's statements to the private citizen. There is no dispute that defendant voluntarily went to the citizen's home and that he was interested in pursuing a romantic relationship with her. During the entire conversation, wherein defendant admitted committing the homicide, the private citizen made no explicit or implicit promises that she would engage in sexual relations with defendant. Rather, it was defendant who offered to tell her anything she wanted to know after she expressed that she was afraid of him, and then provided her with all of the details concerning the homicide. We thus conclude that the private citizen did not make any statement or engage in any conduct that "create[d] a substantial risk that ... defendant might falsely incriminate himself" ( CPL 60.45[2][b][i] ; see People v. Bradberry, 131 A.D.3d 800, 802, 16 N.Y.S.3d 97 [4th Dept. 2015], lv denied 26 N.Y.3d 1086, 23 N.Y.S.3d 643, 44 N.E.3d 941 [2015] ). If anything, the citizen's expressed fear of defendant would have had a higher likelihood of inducing defendant to deny participation in the homicide. Although the private citizen ultimately engaged in sexual relations with defendant later that night, the recording establishes that she made no explicit or implicit promises that she would do so (cf. Commonwealth v. Lester, 392 Pa. Super. 66, 67–73, 572 A.2d 694, 695–698 [1990], appeal denied 527 Pa. 609, 590 A.2d 296 [1991] ). The fact that defendant hoped his confession would endear him to the citizen and convince her that he was worthy of her sexual favors does not provide any arguable basis to believe that his statements were anything but " ‘spontaneous and uncontestably voluntary’ " ( People v. Smith, 118 A.D.3d 920, 921, 988 N.Y.S.2d 233 [2d Dept. 2014], lv denied 24 N.Y.3d 1089, 1 N.Y.S.3d 15, 25 N.E.3d 352 [2014], reconsideration denied 25 N.Y.3d 992, 10 N.Y.S.3d 535, 32 N.E.3d 972 [2015] ). We thus further conclude that the court did not err in refusing to instruct the jury regarding the voluntariness of his statements to that private citizen; there was no evidence at trial "presenting a genuine issue of fact concerning the voluntariness of [those] statements" ( People v. Clyburn–Dawson, 128 A.D.3d 1350, 1352, 7 N.Y.S.3d 770 [4th Dept. 2015], lv denied 26 N.Y.3d 966, 18 N.Y.S.3d 602, 40 N.E.3d 580 [2015] ; see People v. Nelson, 133 A.D.3d 1228, 1228, 18 N.Y.S.3d 915 [4th Dept. 2015], lv denied 27 N.Y.3d 1003, 38 N.Y.S.3d 113, 59 N.E.3d 1225 [2016] ; see generally People v. Cefaro, 23 N.Y.2d 283, 288–289, 296 N.Y.S.2d 345, 244 N.E.2d 42 [1968] ).
We reject defendant's contention that the court erred in refusing to suppress statements that he made to law enforcement personnel without the benefit of Miranda warnings. Although defendant was incarcerated on an unrelated offense, he was not subjected to custodial interrogation inasmuch as "[t]here was no ‘added constraint’ that would have led defendant to believe that some other restriction had been placed on him ‘over and above that of ordinary confinement in a correctional facility’ " ( People v. Boyd, 159 A.D.3d 1358, 1362, 73 N.Y.S.3d 301 [4th Dept. 2018], lv denied 31 N.Y.3d 1145, 83 N.Y.S.3d 427, 108 N.E.3d 501 [2018] ; see People v. Ayala, 27 A.D.3d 1087, 1088, 811 N.Y.S.2d 247 [4th Dept. 2006], lv denied 6 N.Y.3d 892, 817 N.Y.S.2d 627, 850 N.E.2d 674 [2006] ; see generally People v. Alls, 83 N.Y.2d 94, 100, 608 N.Y.S.2d 139, 629 N.E.2d 1018 [1993], cert denied 511 U.S. 1090, 114 S.Ct. 1850, 128 L.Ed.2d 474 [1994] ). We thus conclude that Miranda warnings were not required (see Ayala, 27 A.D.3d at 1088, 811 N.Y.S.2d 247 ; see generally People v. Huffman, 41 N.Y.2d 29, 33, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Defendant further contends that the court erred in failing to instruct the jury on the voluntariness of his statements to law enforcement personnel. That contention is not preserved for our review inasmuch as he did not seek such an instruction for those statements (see People v. Thomas, 96 A.D.3d 1670, 1673, 949 N.Y.S.2d 545 [4th Dept. 2012], lv denied 19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ). In any event, the contention lacks merit where, as here, there was no evidence in the trial record that would raise a factual issue concerning the voluntariness of those statements (see Clyburn–Dawson, 128 A.D.3d at 1351–1352, 7 N.Y.S.3d 770 ; see generally Cefaro, 23 N.Y.2d at 288–289, 296 N.Y.S.2d 345, 244 N.E.2d 42 ).
During jury selection, defendant raised Batson challenges with respect to two prospective jurors. We agree with the People that they provided race-neutral reasons to support striking those jurors. The first juror's disclosure that her father and brother had criminal convictions was offered by the People as the basis for their challenge and constitutes a race-neutral reason to strike a juror (see e.g. People v. Garcia, 143 A.D.3d 1283, 1284, 39 N.Y.S.3d 572 [4th Dept. 2016], lv denied 28 N.Y.3d 1184, 52 N.Y.S.3d 710, 75 N.E.3d 102 [2017] ; People v. Ball, 11 A.D.3d 904, 905, 782 N.Y.S.2d 228 [4th Dept. 2004], lv denied 3 N.Y.3d 755, 788 N.Y.S.2d 671, 821 N.E.2d 976 [2004], lv denied 4 N.Y.3d 741, 790 N.Y.S.2d 653, 824 N.E.2d 54 [2004] ). The second prospective juror disclosed that he had recently read two books by a writer the prosecutor described as "a black revolutionary-type writer," who had "very antigovernment [sic], anti-law-and-order type views." Contrary to defendant's contention, the prospective juror's "expos[ure] ... to ‘anti-police’ and ‘anti-establishment’ sentiments" was a race-neutral reason for the exclusion of that prospective juror ( People v. Funches, 4 A.D.3d 206, 207, 772 N.Y.S.2d 62 [1st Dept. 2004], lv denied 3 N.Y.3d 640, 782 N.Y.S.2d 411, 816 N.E.2d 201 [2004] ).
Defendant's remaining contentions lack merit. We conclude that defendant's right of confrontation was not violated "when an autopsy report prepared by a former medical examiner, who did not testify, was introduced through the testimony of another medical examiner" ( People v. Acevedo, 112 A.D.3d 454, 455, 976 N.Y.S.2d 82 [1st Dept. 2013], lv denied 23 N.Y.3d 1017, 992 N.Y.S.2d 800, 16 N.E.3d 1280 [2014] ; see People v. Chelley, 121 A.D.3d 1505, 1506–1507, 993 N.Y.S.2d 597 [4th Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015], reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ; see generally People v. Freycinet, 11 N.Y.3d 38, 42, 862 N.Y.S.2d 450, 892 N.E.2d 843 [2008] ). Further, the court did not err in denying defendant's request for an accomplice charge inasmuch as there was no reasonable view of the evidence that the particular witness "participated in the planning or execution of the crime[ ]" ( People v. Jones, 73 N.Y.2d 902, 903, 539 N.Y.S.2d 286, 536 N.E.2d 615 [1989], rearg denied 74 N.Y.2d 651, 542 N.Y.S.2d 520, 540 N.E.2d 715 [1989] ; see People v. Young, 225 A.D.2d 1066, 1067, 639 N.Y.S.2d 209 [4th Dept. 1996], lv denied 88 N.Y.2d 1026, 651 N.Y.S.2d 25, 673 N.E.2d 1252 [1996] ). Addressing both the preserved and unpreserved contentions concerning alleged prosecutorial misconduct (see CPL 470.15[6][a] ), we conclude that the prosecutor did not impermissibly change the theory of the People's case (see generally People v. Mateo, 2 N.Y.3d 383, 402, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ) and that the remaining instances of alleged impropriety on the part of the prosecutor "were either fair comment on the evidence ... or appropriate response to arguments made in defendant's summation" ( People v. Speaks, 28 N.Y.3d 990, 992, 42 N.Y.S.3d 644, 65 N.E.3d 673 [2016] ). We conclude that the conviction is supported by legally sufficient evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ) and, viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we further conclude that the verdict is not against the weight of the evidence (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Finally, we conclude that the sentence is not unduly harsh or severe.
All concur except Centra, J.P., and Dejoseph, J., who dissent and vote to reverse in accordance with the following memorandum:
We respectfully dissent because we disagree with the majority's conclusion that the failure of the People to provide a CPL 710.30 notice with respect to statements defendant made to a private citizen who was acting as an agent of the police does not warrant preclusion of those statements.
CPL 710.30 requires, inter alia, that the People serve a defendant with notice, within 15 days after arraignment and before trial, if they intend to offer at a trial "evidence of a statement made by [the] defendant to a public servant, which statement if involuntarily made would render the evidence thereof suppressible" ( CPL 710.30[1][a] ). "[T]he purpose of CPL 710.30 is to inform a defendant that the People intend to offer evidence of a statement to a public officer at trial so that a timely motion to suppress the evidence may be made" ( People v. Rodney, 85 N.Y.2d 289, 291–292, 624 N.Y.S.2d 95, 648 N.E.2d 471 [1995] ). Our colleagues in the majority conclude that, because there is " ‘no colorable basis for suppression of the statement, the failure to give notice [constitutes ] a mere irregularity not warranting preclusion.’ " The cases relied on by the majority involve circumstances where there was "no question as to the voluntariness of" the statements ( People v. Rockefeller, 89 A.D.3d 1151, 1153, 931 N.Y.S.2d 807 [3d Dept. 2011], lv denied 20 N.Y.3d 1064, 962 N.Y.S.2d 615, 985 N.E.2d 925 [2013] ; see People v. Garcia–Lopez, 308 A.D.2d 366, 366, 764 N.Y.S.2d 264 [1st Dept. 2003], lv denied 1 N.Y.3d 572, 775 N.Y.S.2d 789, 807 N.E.2d 902 [2003], cert denied 541 U.S. 1078, 124 S.Ct. 2424, 158 L.Ed.2d 991 [2004] ). The same cannot be said in this case.
"It is for the court and not the parties to determine whether a statement is truly voluntary" ( People v. Chase, 85 N.Y.2d 493, 500, 626 N.Y.S.2d 721, 650 N.E.2d 379 [1995] ), and here we conclude that there is "[a] colorable basis for suppression of the statement[s]" ( People v. Clark, 198 A.D.2d 46, 47, 603 N.Y.S.2d 450 [1st Dept. 1993] ; see generally Commonwealth v. Lester, 392 Pa. Super. 66, 67–73, 572 A.2d 694, 695–698 [1990], appeal denied 527 Pa. 609, 590 A.2d 296 [1991] ), i.e., that the statements were involuntary because they were made in exchange for the promise of sexual relations. While we acknowledge that the recorded conversation between defendant and the police agent does not contain an express offer of sexual relations, we conclude that County Court could have inferred from the conversation and the police agent's testimony that defendant made the statements in exchange for an implicit promise of sexual relations. It is our position that, in cases where it is at least arguable that a defendant would "be entitled to a pretrial hearing, the statutory notice must be supplied regardless of the District Attorney's personal opinion that the defendant['s statements were voluntary] and regardless of the fact that, following a hearing, the trial court might reach the same conclusion" ( People v. Brown, 140 A.D.2d 266, 270, 528 N.Y.S.2d 565 [1st Dept. 1988], lv denied 72 N.Y.2d 955, 534 N.Y.S.2d 669, 531 N.E.2d 301 [1988] ). In our view, that position is supported by Chase and People v. Greer , 42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.E.2d 273 (1977). Indeed, the Court of Appeals recognized that, in Greer, even though it "found that the statement in question was completely voluntary (when discovered by the police in the midst of sexual intercourse, defendant claimed the act was consensual rather than rape but, in response to the officer's question, did not know the victim's name), it precluded the statement for failure of the People to give the required notice" ( Chase, 85 N.Y.2d at 500, 626 N.Y.S.2d 721, 650 N.E.2d 379 ).
Thus, because there is a question here whether defendant's statements to the police agent were voluntary, defendant " ‘had the right to have a court review the circumstances under which the statement[s were] given and to determine [their] voluntariness’ " ( People v. Boone, 98 A.D.3d 629, 629, 949 N.Y.S.2d 494 [2d Dept. 2012], lv denied 20 N.Y.3d 931, 957 N.Y.S.2d 690, 981 N.E.2d 287 [2012], quoting Chase, 85 N.Y.2d at 500, 626 N.Y.S.2d 721, 650 N.E.2d 379 ). Consequently, we conclude that defendant was entitled to notice of the statements made to the police agent pursuant to CPL 710.30 and that "the People's failure to provide such notice should have served to preclude the admission of [those] statement[s] at ... defendant's trial" ( Boone, 98 A.D.3d at 629, 949 N.Y.S.2d 494 ). That error was not harmless, and therefore we would reverse the judgment, grant that part of the omnibus motion seeking to preclude the People from introducing at trial the recorded conversation between defendant and the police agent, and grant defendant a new trial on count one of the indictment (see People v. O'Doherty, 70 N.Y.2d 479, 489, 522 N.Y.S.2d 498, 517 N.E.2d 213 [1987] ; People v. Scott, 222 A.D.2d 1004, 1004, 636 N.Y.S.2d 534 [4th Dept. 1995], lv denied 87 N.Y.2d 1025, 644 N.Y.S.2d 158, 666 N.E.2d 1072 [1996] ).